Human Rights Concerns for Capacity Law Bill
Centre for Disability Law and Policy leads call to Irish Government to
amend new capacity legislation relating to provisions on decisionmaking ability of people with disabilities
Thursday, 22 October 2015: Today (Thursday, 22 October 2015), a broad disability
rights alliance lead by the Centre for Disability Law and Policy, called on the Irish
Government to amend its planned capacity legislation Bill to ensure that it protects
the human rights of people with disabilities, mental health problems and people with
dementia.
Colm O’Gorman from Amnesty International Ireland, said: “This is the Government’s
last chance to make Ireland’s legal capacity legislation watertight. Given how late
Ireland is in ratifying the UN Convention on the Rights of Persons with Disabilities, it
should make sure this is a gold standard piece of law. People with disabilities have the
human right to make decisions about their lives just like everyone else, and have those
decisions respected. With these amendments, this Act can help realise that right.”
Dr Eilionóir Flynn, Acting Director of the Centre for Disability Law and Policy at
NUI Galway said: “We welcome many of the amendments made at Report Stage in
the Dáil, in particular, the removal of informal decision-making provisions from the
Bill. This is a significant protection for the human rights of people who might become
subject to the Bill, including people with intellectual disabilities, acquired brain
injury, autism, dementia, or mental health problems. However, some concerns remain
with the Bill from a human rights perspective, especially its provisions on substituted
decision-making. The UN Committee on the Rights of Persons with Disabilities
describes substituted decision-making as a violation of human rights.”
The Bill could be made compliant with international human rights law by amending
its provisions on substituted decision-making to comply with the recommendations of
the UN Committee on the Rights of Persons with Disabilities. Fiona Walsh of
Tallaght Trialogue Advocacy said: “The representative decision-maker under the Bill
is appointed when a person is found to lack mental capacity. A more respectful
approach would be to appoint an independent person to discover the person’s wishes.
Where the person’s will and preferences remain unknown after significant efforts to
discover them have been made, the independent person could make a decision based
on her best interpretation of that person’s will and preferences.”
John Dolan of Disability Federation of Ireland said: “One of the most important
innovations in the Bill is the introduction of decision-making assistance agreements.
These are flexible agreements that can be used by people who need support, while
retaining the legal right to make their own decisions. However, a person will not be
able to make a legally binding agreement unless they prove that they can pass an
assessment of mental capacity.
Justin Moran of Age Action said: “Many people, both with and without disabilities,
would struggle to pass an assessment of mental capacity on a range of important
decisions in their life. It is our view that access to such a vital support should not be
contingent on ability to pass a mental capacity assessment.”
Tina Leonard of the Alzheimer Society of Ireland said: “The Bill rightly says that
decisions made by people should respect their will and preferences, which is
particularly important for people with significant and complex disabilities, who have
too often had their views ignored. However, the Bill could be further strengthened to
ensure that a person is appointed to discover the will and preferences of an individual
without resulting in a denial of legal capacity.”
The Bill also provides for advance healthcare directives for both physical and mental
health decisions. Shari McDaid of Mental Health Reform said: “Many people with
mental health difficulties have the experience to know what helps their recovery and
want their advance decisions respected.” Áine Hynes of the Irish Mental Health
Lawyers Association said: “We are disappointed that the Bill does not allow these
directives to be legally binding in situations of involuntary detention and treatment.
The moment when someone is detained under the Mental Health Act is precisely the
time that such a directive would be most useful.”
Kathleen Lynch, Minister of State with responsibility for mental health did not accept
amendments offered by Deputy Pádraig MacLochlainn and Deputy Fergus O’Dowd,
which would have prohibited the use of chemical restraint by staff as a response to
challenging behaviour in places such as nursing homes and residential services for
people with disabilities. As a coalition, we welcome the Minister’s willingness from
today’s Report Stage debate to meet with civil society organisations on these matters
and look forward to working with her Department to introduce further amendments to
address these issues once the Bill enters the Seanad.
-EndsFor further information contact Dr Eilionóir Flynn, Acting Director, Centre for
Disability Law and Policy, on eilionoir.flynn@nuigalway.ie or 087 6365408.
Contact Gwen O’Sullivan, Acting Press & Information Executive, NUI Galway on
gwen.osullivan@nuigalway.ie or 091 495695.
On behalf of
Centre for Disability Law and Policy, NUI Galway
Amnesty International Ireland
Irish Mental Health Lawyers Association
Alzheimer Society of Ireland
National Federation of Voluntary Bodies
Irish Advocacy Network
Mental Health Reform
Neurological Alliance of Ireland
Recovery Experts by Experience
Age Action
Disability Federation of Ireland
Tallaght Trialogue Advocacy
St Patrick's Mental Health Services
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